President Barack Obama continues to
fill his administration with devout gun-ban advocates, this time
appointing transnationalist Harold Koh as legal adviser to the
Department of State.

Do you think that American gun laws
should be more like those of other, more restrictive countries? Would
you like the United Nations to help determine the meaning of the Second
Amendment?

If so, then your man of the hour has
arrived. His name is Harold Koh.

Harold Hongju Koh is dean of the Yale
Law School. By all accounts, he is brilliant, personable and well liked.
And he has been nominated for the position of legal adviser to the
United States Department of State.

The position involves far more than
providing behind-the-scenes legal counsel to Secretary of State Hillary
Clinton. The legal adviser formulates and presents the position of the
United States globally on legal issues, including negotiating, drafting
and deciding the meaning of treaties and United Nations resolutions;
representing the United States in international organizations and
courts; and interpreting U.S. policies on international law.

As Koh himself has pointed out, the
"skill and maneuvering of particular well-positioned individuals ...
serving as key institutional chokepoints" can tremendously influence
America's relation with international law. The position of State
Department legal adviser is perhaps the most powerful of all such
positions.

Accordingly, the legal adviser ought
to be a strong defender of American rights, interests and liberties
against foreign encroachment. But Koh has made it very clear that his
aim is just the opposite: to undermine and constrict those rights,
including the Right to Keep and Bear Arms.

Writing in the Stanford Law Review about "the most problematic face of American exceptionalism," the type
that Koh ranked highest in "order of ascending opprobrium," he
complained that the United States did not "obey global norms." Among his
examples was that of "claiming a Second Amendment exclusion from a
proposed global ban on the illicit transfer of small arms and light
weapons."

His views on gun policy are
elaborated in A World Drowning in Guns, a speech published in the
Fordham Law Review in 2003. In that speech, Koh declared,
"If we really do care about human rights, we have to do something about
the guns." That "something" is "a global system of effective controls on
small arms."

In that speech Koh also expressed his disappointment that the 2001 United Nations gun
control conference had not led to a legally binding document. Koh placed
much of the blame on John Bolton, who, in representing the United States
at the U.N., had declared his opposition to restraining the lawful trade
in firearms; subsidizing anti-gun advocacy; limiting arms sales only to
governments; and any final document which, in Bolton's words, "contains
measures abrogating the constitutional right to bear arms."

Koh admitted, "We are a long way from
persuading governments to accept a flat ban on the trade of legal arms." He urged that the next steps be the creation of international
arms registries; giving non-governmental organizations--e.g., the
International Action Network on Small Arms (IANSA)--power to monitor
government compliance with international gun control; and "stronger domestic regulation." (Emphasis in original for both quotes.)

As a mechanism for implementing the
international gun control agenda, Koh pointed to the Organization of
American States (OAS) arms control treaty. In April, President Obama
announced that he would push for U.S. Senate ratification of that
treaty. The OAS treaty needs to be supplemented, Koh said, with
"supply-side controls in the United States." As an example, he pointed
to the "particularly intriguing idea" of "promoting 'smart' or
perishable ammunition." That is, "bullets that would degrade and become
unusable over time."

American legal scholars were already
being helpful, Koh explained: First, they were producing constitutional
research to rebut John Bolton's view of the Second Amendment. Second,
their empirical research was refuting the notion "that more guns produce
less crime in American society." Instead, according to Koh, the research
showed that "more guns have been associated with more, rather than less,
crime."

He urged the audience not to believe
that it was unrealistic to achieve the goal of "harmonizing our own
national approach with those of other countries."

In concluding the speech, Koh
recalled that after he left the State Department in 2001, having served
as President Clinton's assistant secretary of state for democracy, human
rights and labor, he felt there had been "too much work left undone.
After a few sleepless nights, I wrote for myself a list of issues on
which I needed to do more in the years ahead. One of those issues was
global regulation of small arms."

How can Koh and the Obama
administration implement their vision of global gun control?

Hofstra University Law Professor
Julian Ku writes that Koh has "argued for a 'Constitutional Charming Betsy
Canon' that would guide courts in the interpretation of the
U.S. Constitution." (See Ku's
April 9 entry on the law professor weblog opiniojuris.org.)

In the 1804 U.S. Supreme Court case
of Murray v. Schooner
Charming Betsy, Chief
Justice Marshall wrote, "an act of Congress ought never to be construed
to violate the law of nations, if any other possible construction
remains."

The Charming Betsy canon (rule
of legal construction) has been applied by many American courts ever
since. But to elevate Charming Betsy to a canon of constitutional construction would mean that whenever there is
ambiguity, the Constitution should be construed to match international
law.

Thus, the Constitution would be
subservient to international law, since almost every constitutional case
that reaches the Supreme Court involves some kind of ambiguity: What
kind of punishment is "cruel and unusual"? What searches and seizures
are "unreasonable"? Does the protection of "the freedom of speech"
include "hate speech"? If not, does "hate speech" include, as some
people have asserted, the speech of the National Rifle Association, Ann
Coulter or Ted Nugent? What kind of "Arms" are encompassed in the Second
Amendment, and what kinds of controls amount to the right being
"infringed"?

Koh believes that the Supreme Court
"must play a key role in coordinating U.S. domestic constitutional rules
with rules of foreign and international law." The State Department legal
adviser has traditionally played a leading role in shaping the U.S.
government's arguments before the Supreme Court regarding international
law.

Koh's agenda includes constricting
the First Amendment, as well as the Second. In the Stanford article, Koh wrote: "Our exceptional free speech tradition can cause
problems abroad, as, for example, may occur when hate speech is
disseminated over the Internet. In my view, however, our Supreme Court
can moderate these conflicts by applying more consistently the
transnationalist approach to judicial interpretation."

Not coincidentally, the four Supreme
Court justices who dissented in D.C. v. Heller are already
strong advocates of using foreign law to determine the meaning of the
American Constitution. In a 2006 article for the Penn State Law
Review, Koh praises what he calls the court's "transnationalist
faction" and derides "the nationalist faction." Just one appointment to
the Supreme Court could put the transnationalists firmly in control.

Of course, what cannot be
accomplished directly through a Supreme Court ruling can be done in
other ways. In 2002, President George W. Bush withdrew the U.S.
signature from the International Criminal Court (ICC) treaty because he
did not want American citizens to be subject to a court whose rules for
fairness and due process are vastly below American constitutional
standards. So Koh recommended that crafty ICC advocates find ways to
"provoke interactions between the United States government and the
ICC"--such as convincing the U.S. to supply evidence in an ICC case.
Then, in Koh's words, the U.S. cooperation with the ICC "could be used
to undermine" the president's withdrawal from the treaty. The ICC could
claim that the U.S. cooperation has served to "constitute a de facto
repudiation" of the "act of unsignature." Then, the ICC could assert
that it has jurisdiction to prosecute American citizens.

The proposed ICC ploy is one example
of Koh's urging "American lawyers, scholars and activists" to "trigger a
transnational legal process," of "transnational interactions" that will
"generate legal interpretations that can in turn be internalized into
the domestic law of even resistant nation-states."

In the context of the right to arms,
that "resistant nation-state" would seem to be the United States of
America.

Further, Koh wants "human rights
advocates" to litigate "not just in domestic courts, but simultaneously
before foreign and international arenas." Remember, in Koh's view,
anti-gun advocacy is a very important form of human rights advocacy.
Might Hillary Clinton's State Department become a behind-the-scenes
promoter of international anti-gun lawsuits--just as her husband's
administration worked behind the scenes to promote anti-gun lawsuits in
the United States?

Advocacy groups on the outside can be
aided by allies on the inside, as Koh explained in the Houston Law
Review: "These governmental norm sponsors work inside bureaucracies
and governmental structures to promote the same changes inside organized
government that non-governmental norm entrepreneurs are urging from the
outside."

Another weapon in Koh's arsenal is
what is called "customary international law." That's not as much fun to
say as "Constitutional Charming Betsy Canon," but it's just as
important.

One form of international law is
"positive law," which is created by written documents in the form of a
law. Examples include treaties, bilateral agreements and so on.

With origins long before wide-ranging
international treaties became common, customary law has also been part
of international law. Customary law arises from the common behavior of
nations who believe that their actions are compelled by international
law. For example, in the 18th century, "civilized" nations did not
execute enemy soldiers who had been captured, nor did they arrest and
imprison ambassadors from foreign nations, even if they were suspected
of a crime.

These customary practices were
considered by the nations themselves to be legally mandatory, even
though there were no applicable treaties about the laws of warfare or
the immunities of diplomats. Thus, "customary law."

In a normal sense, customary law is
defined by what nations actually do based on their beliefs about legal
requirements. However, Koh and his fellow transnationalists have been
hard at work to drastically expand customary law. For example, United
Nations General Assembly resolutions have no legal force; they
constitute nothing more than the opinion of the majority of the General
Assembly. Likewise, pronouncements at meetings conducted by
non-governmental organizations (NGOs) are not standard sources of
customary international law.

But the transnationalists are adept
at cherry-picking miscellaneous items that have no legal force in
themselves, bundling them together and adding a far-fetched
interpretation of a barely-related clause in a couple of treaties, and
declaring their product to be "customary international law."

Consequently, as State Department
legal adviser, Koh could make a pronouncement that international law
requires repressive gun controls. Among the sources he could cite is the
United Nations Human Rights Council Subcommittee on Human Rights, which
has already declared that there is no human right of self-defense, and
that there is a mandatory international human right to extremely
restrictive gun control. This right is supposedly derived, in part, from
the "right to life" guaranteed by various human rights treaties,
including the International Covenant on Civil and Political Rights,
which the United States Senate has ratified.

Now the final step: Koh contends that
American courts must apply customary international law as part of
federal common law. As a federal law, it would trump any arms rights
protections in state constitutions and statutes.

In the United States, there would be
some judges who would not take Koh seriously, and others who would
simply use his pronouncement to support an anti-gun result they wanted
to achieve anyway. But there might be other judges who perhaps have
little interest in the Second Amendment one way or the other, and who
are cautious about ensuring that their decisions do not cause trouble
for the United States abroad. These judges may be swayed by a State
Department declaration that narrow interpretation of the right to arms
is necessary to keep the United States from violating its international
legal obligations.

In his Senate Foreign Relations
Committee confirmation hearing, Koh said that the Second Amendment had
legal priority over international law. But this is a meaningless
concession, since Koh's objective is to make the interpretation of the
meaning of the Second Amendment conform to the anti-gun, anti-self
defense standards of the United Nations and the other transnationalists.

Harold Koh aims to "bring
international law home." If he succeeds, the Second Amendment may become
an outcast in its homeland.

Editor's Note:

Further reading: Ed Whelen of the
Ethics & Public Policy Center has written a superb
multi-part series on Koh.

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